From Marsilius of Padua. The Defender of the Peace ( 1341 ) we have:
On bringing the leader
to account, and for what reason, how,
and by whom he should be constrained if
he transgresses the law
We said earlier that it belongs to the legislator to bring
to account or completely to change leaders,
just as it does to institute them.
On this subject
someone will quite rightly raise a doubt, viz. as to whether it is expedient for leaders to be corrected
through a judicial process and coercive
power; and if it is, whether this ought to take place for any kind of excess, or only for some of them and not
for others. Again, to whom it belongs to
pass such judgements upon them and to carry out the execution of these
judgements by coercive power: since it was earlier said that it belongs only to leaders to pass civil
sentences and to constrain those who
transgress the law with coercive power.
Let us for our part say that the leader, through his action
according to the law and through the
authority that has been given him, is the standard and the measure of any civil act whatsoever,
in the manner of the heart in an animal.
And if the leader took on no other form than the law, his authority, and the desire of acting in
accordance with it, he would never commit any undue action or one that was
subject to being corrected or measured
by anything else. In this way he himself as much as his action would be the measure of every civil act on
the part of others, while he himself
would never be measured by others: just like a well-formed heart in an animal. For because the heart does not
take on any form through which it would
be inclined to an action contrary to that which arises from its natural virtue and heat, it always
naturally performs its appropriate
action and never the contrary. Because of this it regulates and
measures, through its influence or
action, the other parts of the animal in such a way that it is not itself regulated by them in
any way and receives no influence from
them either.
However, because the leader, being human, has an intellect
and a desire which can take on different
forms – such as a false conception or a perverted desire or both – it is possible for him, if
he follows them, to do things contrary
to what is laid down by law. For this reason the leader is, in these actions, rendered subject to
measurement by something else that has
the authority to measure or regulate him (or those actions of his which transgress the law) according to the law; for
otherwise any leader would become
tyrannical, and the life of the citizens slavish and insufficient. And this is
an evil to be avoided. Now the
judgement, command and execution of any arraignment of the leader for his demerit or transgression
should take place through the
legislator, or through a person or persons established for this purpose
by the authority of the legislator.
It is also appropriate to suspend for a period of time
the office of the leader who is subject
to correction, especially in relation to
the person or persons who must judge his transgression, so that
faction, commotion and fighting do not
break out in the community because of
the resulting plurality of leaders; and also because he is not
being corrected as the leader, but as a
subject who has transgressed the law.
Basing on this principle, then, our approach to the doubts
in question, let us say that an excess
on the part of the leader is either serious or slight; again, it is either one of those things that
can happen often, or that can happen
only rarely; still further, it is either something defined by law or not. If the leader’s offence is serious – for
example against the republic or an
important person or indeed any other person, where failure to bring him to account would be likely to cause scandal
or popular commotion – then in this case
the leader should be corrected for it, whether it is something that happens often or only rarely.
For if it remained unpunished, popular commotion and the disturbance and
destruction of the polity could be
possible. If it is defined by law, then he should be corrected according to the law; if it is not,
then according to the sentence of the
legislator; and as much as possible ought to be defined by law,
Now if an excess on the part of the leader is slight, then
either it is one of those things that
happen only rarely, and is only rarely committed by the leader, or it is one of those things that
can occur often and is often committed
by the leader. If it is or is capable of being committed by the leader only rarely, then one should turn
a blind eye rather than have the leader
corrected for it. Because if the leader were corrected for any minor excess that rarely happens, he would be
rendered an object of contempt; and this
does no small damage to the community in that the citizens as a result show less reverence and
obedience to the law and to the leader.
And again because if the leader were unwilling to submit to arraignment for every tiny offence, since
this would diminish him in repute, a
serious scandal could arise. But nothing of this kind – which cannot yield any evident utility, but only
harm – should be aggravated in
communities.
And this was Aristotle’s explicit opinion on the subject,
Politics II chapter 4, when he said: ‘It
is manifest, that legislators and leaders must
be allowed a few misdeeds. For one who initiates a change does not do
good so much as harm, becoming accustomed to rebel against leaders.’ 3 However, by ‘legislator’ he understood here
the legislated law, which, if men have
become accustomed to obey it, he says should not be changed in order to correct some minor thing in it,
but should be allowed to stay as it is;
the reason being that frequent changing of the laws weakens their strength, sc. the custom of obeying them and
observing the commands they contain.
Hence the same author, in the same book and chapter: ‘The law has no strength to persuade apart from
custom, if it is to be obeyed by the
subjects, the most important thing is custom. It is the same with reverence for and obedience to the leader.
However, if the excess on the part of the leader is slight
but with the possibility of happening
often, then it should be defined in law, and a
leader who is frequently delinquent in respect of it should be
constrained by an appropriate penalty.
For however slight, an offence of this type will do significant damage to the polity if it is
committed often, ‘just as substance’ (i.e. wealth) too ‘is eaten up by small
expenditures made often. For the whole,
and everything, is not small, but is made up of
small things,’ as is written in Politics.